Warning: Those Copyright Warnings May Not Be Entirely Accurate

Can you really be sued by Major League Baseball for telling a friend about that game you watched on TV last night? If you believe the warning that announcers read during every broadcast, you’re violating MLB’s rights when you talk about a game.

“This copyrighted telecast is presented by authority of the Office of the Commissioner of Baseball. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated without express written consent.”

Read the warning closely and it’s not clear what is allowed. MLB doesn’t want me uploading video clips to YouTube — fair enough. But what about “accounts and descriptions” of the game? Do I really need the express written consent of Bud Selig in order to legally tell you that Barry Bonds walked on four pitches in the fifth inning?

On one hand, MLB’s warning is so broad and all-inclusive that it’s become something of a cultural joke. On the other hand, similar over-reaching warnings have become standard on most forms of content protected by copyright. Copyright holders may not actually have all of the rights they claim when they issue these warnings, but that doesn’t stop them from trying to scare consumers with unenforceable threats.

The cumulative impact of these warnings has been to confuse consumers about the nature and balance of rights associated with copyright. Copyright law is complicated enough without entertainment companies intentionally misleading the public.

So, how do sports leagues and entertainment companies get away with these warnings? Mostly because no one has ever bothered to question their validity. Until now.

Yesterday the Computer and Communications Industry Association (CCIA) filed a complaint with the Federal Trade Commission alleging that the warnings many copyright holders give to consumers are essentially a form of “unfair and deceptive trade”.

The claim that news accounts or “descriptions” of the game cannot be “disseminated” is manifestly false. No author may copyright facts or ideas. Copyright serves to promote the dissemination of information by ensuring that every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. Yet the leagues purport to prohibit every unauthorized post-game water-cooler conversation, notwithstanding that a sports league is constitutionally barred from obtaining any copyright over the facts of the games that it produces.

In other words, MLB doesn’t have all of the rights they claim they do.

The complaint goes on to note examples of similar warnings on DVDs, in print publications, and in other forms of media. In all cases, the warnings misrepresent federal law in ways that intentionally mislead consumers.

Collectively, the entertainment industry has an almost pathological aversion to the concept of fair use. A good portion of the War on Piracy ™ is actually an extension of the entertainment industry’s propaganda war against fair use and consumer rights. Somewhere in Hollywood a bean counter has a spreadsheet with a formula that reads ‘[copyright] – [fair use] = [more sales]’.

The public has been subjected to these warning messages for so long that the average person has no clue how copyright works.

A classic example of the confusion that results from these sorts of overreaching warnings is the incident involving a 9 year-old girl sketching a painting in a museum. The young artist was approached by a security guard and informed that she was breaking the law and violating Picasso’s copyright. Confused, the parents asked the girl to put her sketch pad away and gave her a brief tutorial on the concept of copyright. The problem, of course, is that she wasn’t violating any law.

How did the security guard get the idea that a sketch of a painting was a copyright violation? And why didn’t the parents make more of an issue of the incident? Likely because both the parents and the guard had been conditioned by ubiquitous copyright warnings, and had no idea how copyright actually works.

There are some who doubt that this complaint will get very far (mostly the attorneys who write these warnings), but I think it has a reasonable chance of causing the FTC to take some action. After all, we have laws requiring accurate food labeling, and laws requiring truth in advertising, why not a law requiring accurate legal disclaimers?